Clark v. United States, 258 F. 437

Clark v. United States

258 F. 437 | 3rd Cir. | 1919

WOOLLEY, Circuit Judge

(after stating the facts as above). James Clark, Mendel Rankin, Louis Hanin, Julius Schlecter and Caesar Frazer were charged by one indictment with having in their possession *438foods and merchandise stolen from an interstate shipment (Act Cong. Feb. 13, 1913, c. 50, § 1, 37 Stat. 670 [Comp. St. § 8603]), and by another indictment with having in their possession with intent to convert to their use property of the United States which had theretofore been stolen by another person, knowing the same to have been stolen (Penal Code [Act March 4, 1909, c. 321] § 48, 35 Stat. 1098 [Comp. St. § 10215]). The trial proceeded by consent on both indictments against the first four named defendants. Frazer had not heen apprehended. The court directed the jury to acquit Schlecter on both indictments and to acquit the remaining defendants on the first indictment." Under the second indictment, Clark, Rankin and 'Hanin were convicted. Rankin and Hanin submitted to sentence, and Clark alone sued out this writ of error.

We have presented to us thirty-eight assignments of error, which may be readily compressed into four groups, viz.: Errors (1) in the admission of evidence; (2) in the refusal of the court to charge as prayed; (3) in the instructions charged; and (4) in the court’s refusal to direct a verdict of acquittal.

[1] This record with its superfluous and overlapping assignments of error constrains us to repeat the admonition of the Supreme Court in Chesapeake & Delaware Canal Co. v. United States, 250 U. S. 123, 39 Sup. Ct. 407, 63 L. Ed. -:

“This practice o£ unlimited assignments is a perversion of the rule, defeating all its purposes, bewildering the counsel on the other side, and leaving the court to gather from a brief, often as prolix as the assignments of error, which of the latter are really relied on.” Phillips Construction Co. v. Seymour, 91 U. S. 646, 648 [23 L. Ed. 341]; Grayson v. Lynch, 163 U. S. 468 [16 Sup. Ct. 1064, 41 L. Ed. 230]; and Central Vermont Ry. Co. v. White, 238 U. S. 507 [35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252].

The assignments of error as we have grouped them resolve themselves into three questions: First, whether there were errors in the admission of evidence and in instructions which the court charged and refused to charge the jury; second, whether the evidence sustains the finding of the jury that property in the stolen copper was in the United States as laid by the indictment, and third, whether the evidence sustains the finding of Clark’s complicity in the crime.

“Of course, in jury trials, erroneous rulings are presumptively injurious, especially those embodied in instructions to the jury; and they furnish ground for reversal unless it affirmatively appears that they were harmless.” Fillippon v. Albion Vein Slate Co., 250 U. S. 76, 39 Sup. Ct. 435, 63 L. Ed. -.

Applying this rule to the first question, we dispose' of it without doing more than to say, that the trial court’s rulings on evidence and its charge to the jury, covering instructions made and denied, were in nearly every instance free from error; and in the few instances open to doubt, it affirmatively appears, that if error was present, it, was entirely harmless.

[2] We find no substance in the question of proof of property in the United States. This question as raised by the plaintifif-in-error is based on several mistaken references to a date of the contract between the United Metals Selling Company and the United States, con-*439tallied in shipping orders from the Ordnance Department to the Selling Company, by which the Government proposed to prove property in itself. The references were to a contract between the Selling Company and the Government of January 4, 1918, when the contract obviously referred to bore the date of January 20, 1918. But the mis-references in these orders were instantly cured hy correct references in the same orders to the contract by its contract number — G1875-360S. There can be no question that the contract bearing this'number was the contract under which the orders were issued and the shipment was made and that it showed the Government’s property in the copper. Aside from this contract as evidence of property, there was other evidence to the effect that the copper, when delivered by the Copper Company to the Railroad Company for transportation, and later when it was stolen in transit, was the property of the United States and had previously been accepted as such by its duly authorized agents. The defendants did not attempt to controvert the Government’s testimony on this issue by testimony of their own; they merely challenged its accuracy and sufficiency.

The remaining question — the sufficiency of the evidence of Clark’s complicity in the crime — is not open to dispute in view of the positive character of the Government’s testimony and the negative character of the testimony produced by Clark. As the testimony for and against Clark was admitted with scrupulous regard to the rules of evidence in the trial of criminal causes, and as the jury have resolved that evidence against Clark, there is nothing for this court to do but direct that the judgment below be

Affirmed.